Seven Things to Consider When an Employee Refuses to Return to Work

May 22, 2020 – AlertsBy Eileen Oakes Muskett and Brian McGinnis

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Employers in many jurisdictions are gradually reopening or formulating plans to do so while managing numerous financial and personnel challenges. One such challenge involves healthy employees who refuse to return to work despite the employer’s best efforts to insure a safe work environment. An employer’s initial instinct may be to interpret the employee’s refusal as a resignation, but they should consider the following factors before doing so.

1. Interactive Process

Engage in an interactive and constructive dialog with your employee to determine the employee’s concerns about returning to work and if they can be alleviated. Listening to the employee and discussing viable options may rectify the employee’s concern. In some instances, the employee may not be aware of steps the employer is already taking that address their concerns. In other circumstances, an employee’s concerns might be addressed through simple, additional steps the employer can take. Having a real dialogue with employees about these issues will help to determine next steps.

2. Americans With Disabilities Act (ADA)

Employees are entitled to a reasonable accommodation for conditions covered under the ADA and potentially your state’s anti-discrimination statute. The Equal Employment Opportunity Commission (EEOC) has not stated that a COVID-19 infection is a disability, but has encouraged employers to continue to accommodate employees with disabilities, if they are subject to an increased risk of COVID-19. Accommodations can include personal protective equipment (PPE), temporary modification of work schedules, temporary job restructuring, leaves of absence or working remotely. Mental illness, which is a disability, can be exacerbated by the pandemic and may also necessitate accommodations. Employers may request that an employee obtain accommodation recommendations from their physician that will enable the employee to work. Employers are not required to provide accommodations that constitute an undue hardship. See this alert for more detail on pandemic-related workplace compliance guidance from the EEOC.

3. Occupational Safety and Health Administration (OSHA)

Pursuant to OSHA regulations, an employee may refuse to work if they meet the following strict criteria after notifying the employer of the dangerous condition:

The employee must reasonably believe they are in imminent danger.

A reasonable person would agree that there is a real danger of death or serious injury.
AND

Due to the urgency of the situation, there is insufficient time to eliminate the danger.

This “danger” cannot be a generalized fear and must be a real and identifiable condition. If employers are following the guidelines published by the Centers for Disease Control, it will be difficult for an employee to successfully argue they are in imminent danger. See this alert for additional detail.

4. National Labor Relations Act (NLRA)

Employees, whether or not they are unionized, have the right to engage in concerted activity for mutual aid or protection under the NLRA. Such activity may include two or more employees refusing to work or certain assignments due to conditions related to COVID-19, or an employee demanding PPE on behalf of herself and others. Employers may be subject to fines and penalties for violating an employee’s NLRA rights. See this alert for details on considerations for employers with a unionized workforce, and this article for more specifics on employees' protest rights.

5. Family First Coronavirus Response Act (FFCRA)

Employers with under 500 employees are subject to the parameters of the FFCRA. Fox Rothschild has provided several alerts regarding the FFRCA which should be reviewed for more detail. Even if the employer re-opens, the employee may be still entitled to paid leave under FFCRA if they are unable to work (or to work remotely) for certain COVID-19 related reasons. With regard to their own condition, the employee is entitled to up to 80 hours of paid sick time if they are diagnosed with or are particularly vulnerable to COVID-19, and employers can request confirmation via a doctor’s note.

6. Unemployment Regulations

Employees are not usually entitled to unemployment compensation when there is work available and they refuse to work. The U.S. Department of Labor has issued guidance stating that “barring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that the employee must accept.” However, each state has specific regulations concerning what constitutes a viable offer of work, so employers should carefully check their state’s unemployment guidance to insure compliance.

7. Provide a Safe Work Environment

CDC guidelines recommend cleaning and disinfecting the work facility at a heightened level during this health crisis. Refer to CDC's detailed guidance on disinfecting your work environment. Employers must continue to follow the evolving advice of the CDC concerning returning employees to work and cleaning their facilities. See this alert for tips on maintaining a safe workplace.

Employers and employees have both been through a great deal of stress in the last several months and tensions can be high. When an employee refuses to return to work, careful consideration of the above factors can avoid disputes and ease the return process.

Fox Rothschild stands ready to help employers find solutions to human resources challenges during the pandemic. Contact any member of our national Labor & Employment Department for assistance.